Finnis - Nussbaum - Is Homosexual Conduct Wrong A Philosophical Exchange.pdf - Nussbaum - MKTK

Is Homosexual Conduct Wrong? A Philosophical Exchange.

Ediltns ' mtle: Ihe folloxi'itig (irgiiuii'iiLs air

laltt'ii from iwo le^al deposilioiis in Ihi'

recently cotichid/'d tvial in Dt'iii'ri: Colorado,

on lhe constiliitionfdily of Amendment 2,

which Ixirs locid ordinances prutcrling Iwmo-

sexnfds and Usbians from disaiminalion.

John Flnnis is a profexsor of law ul Oxffjrd

llniversiiy. Martha Nnsshaum, a frei/umi

T\'R contiilmtor. i.\ a profe.ssor af philo.softhy

at lirimni [•niversily.

oigans (ilbusband and wile [fally

unilt's tbem biologically (and their bio-

logical reality is part oi. not merely an

instrument o(*, their///'nHJ/f//reality);

lhat orgasmic union therdore can actu-

alize and allow ihem to experience

tlieir real common good—lheir mar-

riage with tbe Iwo goods. (bildren and

friendship, which are the pajt-sofits

wholeness as an intelligihle common

good. But the common good orfriends

who are uot and aiiinol be mai ried

(man and man. man and IKA, woman

and woman) has nothing to do witli

their having children by each oLher.

and llieir reproductive organs cannot

makf them a biological {aiul tberefoi'c

a personal) unit. So their genilal acts

together canuot do what they may hope

and imagine.

In giving lheir citusideicd judgment

llial bomosexual conduci ciLimol actual-

ize tlie good oi'lViendsbip. Plato and the

many philosophers who followed him

intimate an answer to the questions why

it should hcconsiderfdslianifful louse,

oriillowanothei to use.one sbody to

give pleasure, and why this use oi'onc's

bo<iy difters ('rom one s hodiiy piu ticipa-

lion in countless other acliviiie.s (e.g.,

games) in which t)ne takes and/orgets

pleasure. Tlieir respon.sc is thai pleasure

isindfedagood, when it is lhe experi-

enced aspect of one's participali(jn in

some inlelligiblc good, such asaiask

going well, or a ganif or a dance or a

meal oi a reunion. Ol'course, llif actiVti-

tion ol'sexual orgaiiswith a\iew to the

pleasures oi'orgasni is sometimes spoken

of a.s if it were a game. But it diHiers from

real games in tliat its point is not lhe

exercise ofskiil: raibfr. this aciivatioii of

reproductive oi gaus is Incused tipon ihf

i:)O(ly precisely as a source oi' pleasure Ibr

one's consciousness. So ihis is a "use ol

the body" in a strongly diiicrent sense oi

"use."The body now is I'unctioningnot

in tbewayone, as a bodily person, acis to

instantiate some other intelligible good,

bill precisely as providing a ser\ice to

one's consciousness, lo satish' one's

desire for satisfaction.

ity, an instantiation oracuializatioti ol

their friendsbi|)"sf;ommon good. In ri'al-

ily, whatever the generous bopes and

dreams wilh which lhe loving paiiners

surround their use oi their genitais, that

use cannot express more than is ex-

pressed if two .suangcTS engage in geni-

tal activity to give each other orgasm, or

a prostitute pleasures a client, or a man

pleasures himself. Hence. Plato's judg-

ment, al tlie decisive moment of the (iiir-

^ns. that llierc isn()ini[)oilaul distinc-

tion in essential moral woriblessness

between soliiary maslurhatioii, being

sodomized as a pi ostituttr and beiug

sodomi/ed for the pleasure ofil

Societies sucb as classical Athens and

contenipoiiiry Kngland {and virtually

every olher) draw a distinction between

behavior i'ound ineielv (perhaps

extremely) oiTensive (sticli as eating

excrement) and beliavior Ui be repudi-

ated as desiructive oi human character

and relationships. Copulation of

humans with animals is repudiated

because il ireals human sexual activity

andsalisfaclion itssomclbingappropi'i-

alelysouglu iu a manner' ibal. like the

coupling (if auinials, is divorced iVom ibe

expressing oi'an inielligible common

good—and so treats liunian hodiiy life,

in one ofiis most intense aciixities, as

merely animal. The deliberale genital

cotipling of persons of the same sex is

repudiated tbra very similar reason. It is

not simply thai it is sterile and disposes

lbe participants Loan abdication of

rcsponsiliiliLy Ibr the I'titure of

htimaiikind. Nor is it simply lhat it can-

not rm//)'actualize the miilual devotion

thai some liomosexual persons hope lo

iTianifest and experience by it; nor

merely ibal il harms ibc personalities oi

its partic ipanis by ils disintegrative

nianipulaticinofclifierent parts of lheir

one personal reality. It is al.so that it treats

human sexual capacities in away tliat is

deeply hostile to theself-understimding

of those members of the community wbo

are willing locomniil themselves to r<'al

marriage [even <ine that happens to be

sterile] in ihe undetsianding tbat ils sex-

ual joys are not mere insti unientsor

accompanimenis to. or mere compensa-

tion ibr, the accomplishmonis oiinar-

riage's responsibilities, liut ralher are lhe

aclufdizing and fixpmeticinfrof lhe iiuelli-

gent conunilnient to share in tbose

responsibililies ...

lowing lines. Ill 111asiLii haling, as in

being nuistui bated or sodomized,

one's body is treated iis insirunuiual for

Llie seeming (tf lhe experieiiliiil satisl'ac-

lioii ofihe cou.sciotisseir. Thti.s one dis-

integiatesoiicscii'iii two ways. (/) by

Heating one's body as a mere insti itnieni

ol' ihc consciously operating sell', and

(2) by making one's choosing .sell' tJie

quasi-siave of the experiencing self

which is demanding gratification. The

worthlessness oi the giatificaiioii. and

the disintegration ofoneseU. are hoth

the result ol'the laci lhat, in these sorts

olbchavior. one's conciuci is not ihc

acluali/ing and experiencingi)ra real

common good. Marriage, witli its double

blessing—procri'alion and IVifiitlship—

is a real common good. Moreover, it is a

common good thai can be boili actual-

ized and experienced in lhe orgasmic

union ofihe reproductive organs nf a

man and a womnn united in commit-

mcnl to Lliatgood. tlonjugal scxLiiil activ-

ity, and—as Plato iind ,-\i islotle and

Plularch and Kant all argue—rt»/vconju-

gal activiiy is free fVom lhe shamcfiilness

ol'inslrumeniali/alion dial is [oiind in

masuirbaling and in being masliirbated

01 sodomized.

At the very hearl ofihe reflections of

Plaio. Xenophon. .\risioile. Musonius

Rufus and Plutarch on tlic homoeiotic

ciilitire around ilicin is the very deliber-

ate and careful jndgmeni that homosex-

ual continci (and indeed all extiaiiiiiriial

sexual gialiilcalion) is ladicaliy inca-

pable ol' parlieipaling in, or actualizing,

ibe common good (.jl'tVieiidsliip.

Friends who engage in sucb conduct

are i'oilowing a naiurai impuise and

douhiicss often wish lheir geuital con-

duct to he an intimate expression of

lheir miilual ai'fection. Bui tbev are

deceiving ibemscivt-s. The ^ucmpt lo

express affeciion i)\' orgasmic nonman-

tal sex is the pursuit ofan illusion. The

union of the reproductive

Tbis disintegriLy is much nioreoljvi-

ouswben masturbation issoliuu).

Fiiends arc tempted to think that plea-

sm'ingeach other by some forms of

mutual masturbation cotild be an instan-

liation or actualization oi'promotion of

their IVien(isbi[). lim ibat line of ibougbi

ovcrlot)ks tlic lai t tbal if tlieir friendship

is nol marital... activation of their

reproductive organs caiinoi be. in real-

This pattern ol judgment, boib

widespread and sound. c<)ncludes as fol-

lows. Homosexual orientation—the

12 THE Ntiw REPUHUC NOVEMBER is. 1993

Disintegrity

T hciiiidcriyingtiiought i.s on the fol-

deliix-rafe wiiiiiigness to promote and

engage in homosexual acts—is a stand-

ing denial oi liie intrinsic aptness oi

sexual inlertoiu'se lo actuali/e luid give

expression io tb<- exchisiveness and

opeti-ended commiuiient o( marriage

as something good in iiseli'. .-^11 wbo

accepl that liomosexual arts can l>e a

humanly appropriate tis<- of sexual

capacities nitisi. if consisU'ni, regard

sexual capacities, organs and acts as

iiisirument.s to be put to whatever suils

lhe purposes ofihe iiuiividiial "seli"

wiio has thciii. Such an acceptance is

(ommonly (and in my opinion rightly)

judged to be an active threat to the sta-

bilitv of existing and future marriages;

it makes nonsense, ibr example, of the

view thai aduiier\ is per se (and not

merely betause ii mav involve decep-

tion), and in an imporiani way, incoii-

slsteiit with conjugal love. A political

communiiv thai judges that lhe stability

and edutative generosilv oi'family lii'e is

ori'undaiiu'utal imporiance lo the com-

munitv's [jresenl aiid luluie can rigbllv

judge llial il has a compelling interest

in dcn\ing ibai homosexual conduct is

a valid, humanly acceptable choice and

form of liie, and in doing whatever it

properly can, as a communiiy with

uniqueiv wide inu siill suhsidiaiy func-

tions, lo discourage such conduct.

drus points to the militarv advantages

deri\ed In including homosexual tou-

|)les in a lighting tone: het ause of their

intense lo\f, each will fight better, wish-

ing to sliow himself in lhe besi light

before his lover. Tlie speech ol Patisa-

nias criticizes males who seek physical

pleasure alone in iheir homijsexual

iclationsliips, ;uid praises those who

seek in sex deeper spii-iuial fommuiiica-

lion. Pausanias menlions ihat niants

will sometimes promulgate the view that

same-sex relations are shameiul in

order to discourage the kind of tommu-

nity of dedication to political liberty

thai such relations foster. The speech of

Aristophanes holds that all human

l>eings are disided hahes oi" iornierlv

whole lu-ings, and thai sexual <lesire is

the pursuit of one's losi oiher hall; he

poinls out that tbe superior [x-ople in

;ui\ society are those whose lost "otliei

hail" is of lhe same sex—especially the

niaic-male pairs—siiue these are likel\

tt> be tbe sirongest and most warlike

and civieally minded people. Finally.

Socrates"s speech recounts a pio( ess oi'

religious-nnslical education in wbi( h

male-male loxe plays a central guiding

role and is a primary source of insight

and inspiraiion into tlie nature ol tbe

good and heautifui.

Plato's Phaedrus contains a doselv

related praise of the intelltctual. politi-

cal and spiriiual benelils oi'a Hie ccii-

ifred aiound male-nialc love. Plalo savs

ihai the highesi Ibrin oi himian liie is

one in which a male pursues "the love

ofa young man along with philfisophy."

and is transported hy passionate desire.

Me dcs( ribes ibe experience of falling

in love wilh anothe r male in mo\ing

terms, and tlei'ends relationships ihat

are nuUiial and leciprtical o\er relation-

ships thai are one-sided, He depicts bis

pairs of lo\frs as spending their liie

together in the pursuit oi intellec tual

and spiritual activities, combined with

political participation, (.\lthough no

mai liages for ibese lovers are men-

lioned. il was LIU" view oi'ihe time tbat

this form oi'life does not prevent iis

participants iVoni having a wile ai

iioiiie. whom they saw onh rareiy and

for procreative purposes.)

Aristotle speaks iar less ahout sexual

love than dtjes Plato, hut it is evident

tliai he too linds in mal<--male relation-

ships llic potential ioi the highesi form

of fiicndship. a iriciulshi]) based on

mutual wc-ll-wisbing and muiiial aware-

ness oi'good (baraciei and good aims.

He does not iind this poicniial in male-

ibni;ile relationships, since he holds

that iemales are incapable of good char

biiili around lhe idea of pairs ol"

male lovers whose- bonds gave the

cit\ rich sourcesoiniotivation iorviitue.

.Although the Sioics wished lheir "wise

man" to eliminate most passions from his

life, they encouraged bim lo Ibsier a type

oi'erotic love ihal they defined as "the

attempt to ibrni a friendship inspired hv

the pcrceivc'd hcaiitv (tf young men in

ihfir piime."Tliev held that tins love,

unlike olher passions, was supportive of

\ii llie and philosophical activitv.

Ftulliermore. Finniss argument, in

his article against homosexuality, is a

bad moral argumeni hy any .standard,

secular of theological. First of all. il

assumes that tbe purpose of a bomosex-

ual act is always c)r usuallv casual bodilv

pleasure and the instrumental use of

another person ior one's owii gratiilca-

tion. ]M\\ ibis is a I'alse premise, easily

disproved bv lhe long bistorical tradi-

tion I have described and by the con-

temponu^ lives of real men and

women. Fiiinis oiVers uo e\idence for

ibis pr'-niise, or for (he equally false

idc-a lhat [jrocreative relations cannot

be selilsh aud manipuiative. Second,

iiaving argued that a relatioiisiiij) is bel-

ler if il seeks not casual pleasure bin the

creation of a community, he then

assumes without argument lhat the only

son of conimiiuiiy a sexual relationship

can create is a "procieative coinnuuiiiy."

Tliis is. oi'coui"se. plainly false. .A sexual

relaiit>nsbi() may create, qtiite apart

from tbe possibility oi'procreation, a

communitv oi'love and frientlship.

which no religious iracliiion would deny

lo be important human goods, hideed,

in many moral tradiiions, including

lliose of Plato aud Aiisiotle, ihc procre-

ative communiiy is ranked beneaih

other communiiies created bv sex. since

it is thought tliat the procreative com-

mtmity will piobabh noi be based on

the besi sort of liieudship and lhe

deepc;si spiritual concerns. Thai may

not be true in a culture that values

women more highly ihan ancieni Greek

culture did; but ihc' possibilily of love

and (Vic nclsbip helwc-en individuals of

lhe same sex has not i)een removed by

iliesc historical changes.

lOHN FiNNIS

uality sci themselves in a tradition

of "naiiiral law" argumentation tbal

derives irom ancient tireek traditions.

The lerm "law < >f nature" was (irsi used

b\ i'lato in his f^^^r^VjA. The approach is

furtlierde\elopedby.\iisiotle, and,

above all, hv the Greek and Roman Sto-

ics, who are tisuallv considered to he the

foimdersof natural law argumcntiUioii

in lhe modern l<-gal tradilion. through

ibcir inlluend'on Roman law. This

being so, it isworib looking to see

whether those traditions did in fact use

"natural law" arguments to rule homo-

sexual conduct morally or legally sub-

standai'd.

Plalo's dialogues contain several

exiiemely moving celel)rations of male-

male love, and judge this form of h»e

lo I>e, on the whole. Mi|><-rioi" to male-

female love bctiuise ol ils potential for

spirituality and triendsbip. The Sympo-

sinrii contains a series oi speeches, each

expressing ronveniionai views about

this subject that Plato depicts in an

appealing light, fhe speech by Phae-

M.ARrHA Nl SSHAtM

NOVEMBER 15, 1993 THE NKW RhPLBLIC 13

acter. Like Pausanias in Plato's S\mp{h

siiim, .\iistotle is critical of relationships

that arc superficial and concerned only

wilb hodiiy pleasure; I>ut he Inids in

nmlc-nialc relalionships—including

many iliat l>egin in this way—the poien-

tiiil for much richer developments.

T he ideal city of ihc Greek Stoics was

Integrity

F iniiis s argtimenis againsi homt)se\-

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